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Testimony: The Illegal IRS Rule

A Picture of Abby Coleman Abby Coleman
09/17/2012

The CATO Institute

The Illegal IRS Rule to Increase Taxes & Spending under ObamaCare

Michael F. Cannon and Jonathan H. Adler

Committee on Oversight and Reform

United States House of Representatives

This testimony was delivered on August 2, 2012.

Mr. Chairman and members of the Committee, thank you for the opportunity to present our views on the Internal Revenue Service’s final rule concerning “premium-assistance tax credits” under the Patient Protection and Affordable Care Act. It is our contention that this rule exceeds the IRS’s statutory authority under the PPACA and is illegal.

Contrary to the clear language of the statute and congressional intent, this rule issues tax credits in health insurance “exchanges” established by the federal government. It thus triggers a $2,000-per-employee tax on employers and appropriates billions of dollars to private health insurance companies in states with a federal Exchange, also contrary to the clear language of the statute and congressional intent. Since those illegal expenditures will exceed the revenues raised by the illegal tax on employers, this rule also increases the federal deficit by potentially hundreds of billions of dollars, again contrary to the clear language of the statute and congressional intent.

The rule is therefore illegal. It lacks any statutory authority. It is contrary to both the clear language of the PPACA and congressional intent. It cannot be justified on other legal grounds.

On balance, this rule is a large net tax increase. For every $2 of unauthorized tax reduction, it imposes $1 of unauthorized taxes on employers, and commits taxpayers to pay for $8 of unauthorized subsidies to private insurance companies. Because this rule imposes an illegal tax on employers and obligates taxpayers to pay for illegal appropriations, it is quite literally taxation without representation.

http://www.cato.org/publications/congressional-testimony/illegal-irs-rule-increase-taxes-spending-under-obamacare-1

The Center for Individual Freedom

September 13, 2012

IRS Rewrites ObamaCare to Increase Taxes

Ashton Ellis

First the Supreme Court rewrote President Barack Obama’s signature health reform law to save it from the Constitution. Now the Internal Revenue Service claims its new rule can interpret the law in a way that violates its text and history.

The latest outrage against common sense is an IRS rule finalized on May 23. The rule makes tax credits available to participants in federally run health insurance exchanges created under the Patient Protection and Affordable Care Act (aka ObamaCare). But while Section 1311 of ObamaCare allows tax credits to certain people in state-run exchanges, Section 1321 – the section regulating federally run exchanges – does not.

Nevertheless, the new IRS rule specifies that tax credits will be available through exchanges “established under section 1311 or 1321” of ObamaCare.

By rewriting ObamaCare without statutory authorization, the IRS is engaging in an illegal power grab that will cost taxpayers billions.

As regulation experts Jonathan Adler and Michael Cannon explained in testimony before Congress, one of the central arguments used to promote ObamaCare was that passing it would not add a penny to the federal deficit.

The ability to make that argument was based on shifting the cost of creating and running the health insurance exchanges onto states.

Here is where liberals in Congress got cute.

Instead of simply forcing states to create exchanges – which would have heightened opposition inside and outside Washington – they coupled the mandate with an enticement. Voluntary compliance would trigger “premium-assistance tax credits” available to people in state-run exchanges. The tax credits would act as a subsidy paid by the Treasury Department on behalf of an eligible participant purchasing health insurance from a private provider in the exchange.

When ObamaCare was working its way through Congress, Senate Finance Committee Chairman Max Baucus (D-MT), a lead sponsor of the law, confirmed the tax credit enticement strategy. When questioned about the difference between the benefits to people in state versus federally run exchanges, he said, “And [for] states – an exchange is, essentially is tax credits.”

However, if states refuse to create an exchange, ObamaCare empowers the Secretary of Health and Human Services to do so.

But those pushing ObamaCare toward passage didn’t count on almost thirty states eventually refusing to create exchanges. With the federal government stepping in to create and run sixty percent of the nation’s newly mandated exchanges, gone is the accounting gimmick of cost-shifting the spending increase onto the states.

The hit to taxpayers will be bad enough, but the new IRS rule makes the spending problem even worse. By injecting tax credits into federally run exchanges, the IRS is requiring the Treasury Department to subsidize health insurance purchases in thirty jurisdictions that ObamaCare, by its terms, does not cover.

In analyzing the new IRS rule, the Congressional Budget Office estimates that if no states create exchanges, the cost of the new rule will total $1 trillion in new spending over the next ten years. With sixty percent of the states opting not to participate, federal taxpayers are looking at hundreds of billions of dollars added to the deficit.

And all this without one shred of authority from ObamaCare’s text or legislative history.

The quickest way to rein-in the IRS is for Congress to exercise its authority under the Congressional Review Act. It allows Congress to kill a bureaucratic rule from going into effect by passing a joint resolution of disapproval. SJR 48 by Senator Ron Johnson (R-WI) would do just that. Recently, the bill received the support of forty-six conservative and free market organizations (including CFIF) opposed to the IRS’s illegal power grab.

The Supreme Court failed to take the text and intent of ObamaCare seriously, and now the IRS is following its lead. Unless Congress reasserts control over the lawmaking function, it may soon find itself as the least important branch of government.

4 Comments

  1. tausha yowell September 30, 2012

    i work m40 hors a week main income in my house hold and can not afford insurance because it costs to much and now i am being told that if i do not have insurance i get cut down to 30 hours a week i can not afford that. that is not right something else needs to change for the middle class that is working really hard to keep a roof over there families heads and food in there mouth r u even thinking about those.

  2. Laila Owies October 8, 2012

    taucha: So what is the solution??. You reject Obama’s care because he said that every one has to have insurance. Tell me what Romney said?. Did he say he will supply every one with Insurance ( affordable)..No he said it is up to the person..Well, what happened when people get sick..They go to emergency ( because they can afford paying to the doctor), then may admitted into the hospital..and paying nothing..So, who paying for that?. People like me working, having all the insurance that are required..I pay whatever my insurance does not pay..And you get it free..why?.

    Do you have a car insurance so you can drive your car?. Some people care about the car than their health?. They should eliminate car insurance, and when accident happens..then every one fix his/her insurance car. No one should pay , property tax..then he/she loose the house if caught on fire..So, not having insurances for the 2 above item will cost you so much because you will be the responsible one..But, if you do not pay medical insurance..you are not loosing any thing..actually gaining..they will take care of you, and other pay for you.

  3. Tiffany October 12, 2012

    I can see it from both ways I understand that having hours cut is an unfourtante situation, being as I work two jobs myself working fourty hours a week at one and twenty five a week at the other to keep my house.
    However, I do not get free medical because according to standards I make
    far too much income to fit the criteria. I think that insurance being
    available this easily is amazing, I wonder how many others have been in my shoes having to work but not being able to afford the insurance and then it becoming available like this. I agree with Laila everytime a sick person goes into the Er the money to pay for the bill that they cant afford comes back out of your taxes. So either way your paying for them to go to the hospital when this could fix people not having insurance.

  4. Laila October 12, 2012

    Do you mean that you do not have a medical insurance from where you work?..or you mean free..as free =zero.

    As far as I know, me, all my friends had to pay their share .